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Code42 Support

CrashPlan PRO EULA From February 29 2016

END-USER LICENSE AGREEMENT (“EULA”)

FOR CODE42(R) CRASHPLAN PRO

Effective 2/29/2016

 

This EULA is a legal agreement between the end-user customer (collectively referred to herein as “You” or “Your” or “End-User”), and Code42.  This EULA governs Your use of the Code42 Software, Code42’s subscription-based services, including Support, the Public Cloud, (“Code42 Subscription Services”), and Documentation, sold hereunder to End-User (hereinafter individually and collectively the "Code42 Products and Services").  

 

BY OPERATING, DOWNLOADING, INSTALLING, REGISTERING OR OTHERWISE USING THE CODE42 PRODUCTS AND SERVICES, OR CLICKING AN "I ACCEPT” OR “CONTINUE" BUTTON ASSOCIATED WITH THIS EULA, YOU (OR YOUR AUTHORIZED AGENT, IF APPLICABLE) EXPRESSLY AND EXPLICITLY ACKNOWLEDGE AND AGREE THAT THIS IS A BINDING EULA AND YOU HEREBY AGREE TO THE TERMS OF THIS EULA.  IF YOU ARE AN EMPLOYEE OR OTHER REPRESENTATIVE ENTERING INTO THIS EULA ON BEHALF OF THE END-USER, YOU HEREBY REPRESENT AND WARRANT TO CODE42 THAT YOU ARE (A) AUTHORIZED TO ENTER INTO THIS EULA ON BEHALF OF THE END-USER AND BIND END-USER TO THE TERMS AND CONDITIONS CONTAINED IN THIS EULA; AND (B) YOU ARE OVER THE AGE OF 18 YEARS OLD. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS IN THIS EULA OR ARE NOT AUTHORIZED TO ENTER INTO THIS EULA ON BEHALF OF THE END-USER, DO NOT OPERATE, DOWNLOAD, INSTALL, REGISTER OR OTHERWISE USE THE CODE42 PRODUCTS AND SERVICES.

 

YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW ANNUALLY AT THE PUBLISHED MONTHLY RATE, UNLESS YOU CANCEL BEFORE THE START OF THE NEXT SUBSCRIPTION RENEWAL DATE.  YOU MAY CANCEL YOUR SUBSCRIPTION BY EMAILING US AT SUPPORT@CODE42.COM.  IF YOU CANCEL, PREVIOUS CHARGES MAY BE REFUNDED, YOUR SUBSCRIPTION WILL BE TERMINATED, AND YOUR USER DATA WILL BE DELETED FROM THE PUBLIC CLOUD. 

 

Code42 makes no representations that the Code42 Products and Services are appropriate for use in other locations outside of the United States. If you use the Code42 Products and Services in or from locations outside the United States, you are responsible for compliance with all applicable laws and regulations.  If using the Public Cloud, your User Data will be stored in data centers located within the United States or Australia, as specified in Section 1.m. below.  If you are located within the European Union and elect to use the Public Cloud, the model contract clauses located at http://www.code42.com/r/support/eula-eu-model-contract-clauses will apply and are incorporated herein by reference.

 

Code42 reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this EULA and to impose new or additional rules, policies, terms, or conditions on Your use of the Code42 Products and Services. Code42 will communicate changes to this EULA by posting the new version of the EULA on its website at www.code42.com (or support.code42.com) or as otherwise determined by Code42 in its sole discretion, at which time such updated EULA will be immediately effective. Your continued use of any Code42 Products and Services after such notification of changes to this EULA will constitute the End-User’s acceptance of any and all such changes.  

 

  1. DEFINITIONS.
  1. Applicable Law” shall mean all applicable laws, regulations, ordinances, rules, codes and orders of governmental authorities having jurisdiction over Code42 and End-User.
  2. Code42” means (i) Code 42 Software, Inc., a Delaware corporation with its principal place of business at One Main Street SE #400, Minneapolis, Minnesota 55414 U.S.A. with respect to Code42 Products and Services that are shipped to, deployed or rendered inside and outside of the United States and all other countries, exclusive of offerings in the following subsection (ii), or (ii) with respect to all Code42 Products and Services that are shipped to, deployed or rendered within Australia or New Zealand, Code 42 Australia Pty LTD, a company incorporated under the laws of Australia.
  3. "Code42 Partner" means a third party reseller or distributor authorized by Code42 to sell Code42 Products and Services.
  4. "Code42 Software" means Code42-branded enterprise software, and any Modifications thereto, licensed on a subscription basis as part of the Code42 Subscription Services.
  5.  “Code42 Users” means You and/or those employees or contractors of End-User who are using the Code42 Software on one or more Devices (not to exceed 4 Devices per individual Code42 User) to backup User Data (either active or inactive) or utilizing other features of the Code42 Products and Services.
  6. "Device" means any computer, tablet, smartphone, or other electronic device on which the Code42 Software is installed.
  7. "Documentation" means written, published information accessible via http://support.code42.com, as updated from time to time.
  8. Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
  9. Master Server” means the server on which the Code42 Software is installed for user authentication and authorization, storage of encryption keys, and centralized policy management, and, at End-User’s election, it must be located in either the Public Cloud or in a Private Cloud, on End-User’s own, or its agent’s, hardware.
  10. "Modifications" means additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to Code42 Software.
  11. “Open Source Software” will have the meaning set forth in Section 11 below. 
  12.  “Order” means End-User’s order of Code42 Products and Services via Code42’s website(s).
  13.  “Public Cloud” means the cloud-based off premises backup storage services provided by Code42 on Code42’s servers in data centers located in (i) Australia, if the Code42 Products and Services are shipped to, deployed or rendered in Australia or New Zealand, or (ii) the United States, if the Code42 Products and Services are shipped to, deployed or rendered in the United States or any other country not contemplated in (i) herein.  Notwithstanding the foregoing, all support and account information are stored on servers located within the United States.  While there is no current limitation for End-Users on the amount of User Data backed up to the Public Cloud, Code42 reserves the right in the future, in its sole discretion, to set commercially reasonable data storage limits (i.e., 5 TB) on all Code42 Software accounts.
  14. Subscription Term” means the period of time beginning on the date of acceptance of this EULA, for which Code42 has committed to provide, and End-User has committed to pay for, the Code42 Subscription Services (generally, twelve (12) months in duration).
  15. Support” means the support and maintenance services performed by Code42 related to the Code42 Software, Public Cloud, and Master Server, descriptions of which are accessible via http://support.code42.com/Administrator/Support.
  16. Third Party Product” means any non-Code42-branded products and services (including hardware and any operating software included therewith) and non-Code42-licensed software products.
  17. "User Data" means all content and materials backed up, stored, indexed, or otherwise transmitted by End-User in an encrypted form using the Code42 Software.
  18. “Usage Data” means any and all aggregated information reflecting the access or use of the Software and Subscription Service by or on behalf of you or any Code42 User, including visit-, session-, or stream-data and any statistical or other analysis, system health information or data based on or derived from any of the foregoing.

 

  1. GRANT OF LICENSE AND ACCESS TO CODE42 SUBSCRIPTION SERVICES.

a. LIMITED EVALUATION GRANT OF LICENSE. Subject to the terms of this EULA, you are hereby licensed by Code42 to use for evaluation purposes only (i) one (1) copy of the Code42 Software; and (ii) the use of the Public Cloud, without charge, for a period of thirty (30) days after you first activate your subscription. If you want to continue to use any version of Code42 Software after the 30-day evaluation period, you must acquire from Code42, for a fee, a subscription for the Code42 Subscription Services. Use of the Code42 Products and Services after the expiration of the 30-day evaluation period without acquiring such a license is outside the scope of this EULA and a violation of U.S. and international copyright laws. If you do not purchase a subscription to the Code42 Products and Services after the evaluation period, your ability to use the Code42 Products and Services, including your ability to backup or retrieve backup User Data from the Public Cloud, will automatically cease to function 31 days after activation of your subscription.

 

b. NON-EVALUATION GRANT OF LICENSE. Conditioned upon compliance with the terms and conditions of this EULA, Code42 grants to you a nonexclusive, nontransferable, non-sublicenseable, revocable, limited license to use those Code42 Products and Services that you have validly licensed and subscribed to use solely for Your internal business purposes and otherwise pursuant to the terms of this EULA.  You understand and agree that the Code42 Software may contain unlicensed add-on features for which End User is not licensed to use and which may be licensed to you for additional fees.

 

  1. PRICING AND PAYMENT.
    1. PRICING INFORMATION. Pricing and subscription information for Code42 Products and Services is provided at https://store.code42.com/store/ (“Pricing Policy”). Code42 may change the price for the Code42 Products and Services from time to time by updating the Pricing Policy. Such changed price will take effect after the expiry of the then current paid for period (i.e., the term that you have already paid for). If you do not wish to be bound by such changed price relating to your Code42 Products and Services, you may terminate your subscription of your Code42 Products and Services in accordance with Section 13 (Termination). Your continued use of the Code42 Products and Services after the communication of such price change to you constitutes an acceptance of such new price.
    2. PAYMENT.  Code42 will offer you the opportunity to subscribe to the annual subscription fee, as applicable. BY ACCEPTING THIS AGREEMENT AND USING CODE42 PRODUCTS AND SERVICES, YOU EXPRESSLY AUTHORIZE CODE42 TO BILL AND COLLECT PAYMENT FROM YOU BY ANY PAYMENT METHOD YOU REGISTER WITH CODE42 INCLUDING, BUT NOT LIMITED TO, YOUR CREDIT CARD, BANK ACCOUNT, OR ONLINE PAYMENT SYSTEM SUCH AS PAYPAL. 

If you agree to pay the fee for subscribing to the Code42 Products and Services, such fee will be charged by the company designated by Code42 in accordance with the payment method you have chosen for your purchase. If you are paying by credit or debit card, by designating a card to be billed, you confirm that you are authorized to make such purchase and that you are the holder of such card (i.e., that the card is issued in your name). All prices stated on the Code42 website are inclusive of any applicable sales taxes and fees and are subject to change at any time. Code42 accepts a variety of different payment methods, so please check the Code42 website https://store.code42.com/store/ for the best way for you to pay. It is your responsibility to maintain proper payment and billing information with Code42. Failure to maintain proper and up-to-date payment and billing information will result in the termination of your subscription to the Code42 Products and Services in accordance with Section 13 (Termination).

Should you choose to cancel your subscription, Code42 may provide a pro-rata refund of any payments already paid pursuant to the process set forth at

  https://support.code42.com/Administrator/4/Licensing/Canceling_Your_CrashPlan_PRO_Online_Subscription.

 

  1. AUTO RENEWAL. 

YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW ANNUALLY AT THE PUBLISHED MONTHLY RATE, UNLESS YOU CANCEL BEFORE THE START OF THE NEXT SUBSCRIPTION RENEWAL DATE.  YOU MAY CANCEL YOUR SUBSCRIPTION BY EMAILING US AT SUPPORT@CODE42.COM.  IF YOU CANCEL, PREVIOUS CHARGES MAY BE REFUNDED, YOUR SUBSCRIPTION WILL BE TERMINATED, AND YOUR USER DATA WILL BE DELETED FROM THE PUBLIC CLOUD. 

 

  1. CONFIDENTIALITY.
    1. CONFIDENTIAL INFORMATION.  As used in this EULA, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Code42 or End-User (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Code42’s Confidential Information includes, without limitation, the Code42 Products and Services and the terms of this EULA.  Confidential Information shall not include User Data.  Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this EULA by the Receiving Party.  Each party agrees that it shall use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement.  Neither Code42 or End-User will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  Both Code42 and End-User will use commercially reasonable measures to protect the confidentiality and value of the other party’s Confidential Information.  Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this EULA; and (ii) as required by law (in which case each party shall provide the other with prior written notification thereof, shall provide such party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).  Both Code42 and End-User agree to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Both Code42 and End-User shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

 

  1. INTELLECTUAL PROPERTY.

a.   OWNERSHIP.  This EULA contains a limited license to use the Code42 Products and Services during a Subscription Term, not a transfer of title to the Code42 Products and Services.  All Intellectual Property Rights in the Code42 Products and Services belong exclusively to Code42 and its licensors. End-User is granted no licenses to any Intellectual Property Rights other than as expressly granted herein. End-User shall not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the Code42 Products and Services as delivered to End-User. End-User agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of Code42 in and to its Intellectual Property Rights.  To the extent End-User provides any suggestions, comments, or other feedback related to the Code42 Products and Services to Code42 or its authorized third party agent(s) (“Feedback”), End-User hereby grants Code42 a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable, transferable license to use such Feedback or subject matter thereof in any way and without limitation.

  1. RESTRICTIONS.  Except as otherwise expressly provided under this EULA, End-User shall have no right, and End-User specifically agrees not to: (i) transfer, assign or sublicense any license or subscription rights to another person or entity, and End-User acknowledges that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to, or otherwise modify or adapt, the Code42 Products and Services or to create derivative works based upon the Code42 Products and Services, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Code42 Products and Services to human-readable form; (iv) use or permit the Code42 Products and Services to be used or otherwise rebranded for commercial use in the operation of End-User’s business or to perform services for third parties, whether as a managed service provider, outsourced business process providers, on a service bureau or time sharing basis or otherwise; (v) disclose, provide, or otherwise make available trade secrets contained within the Code42 Products and Services in any form, to any third party without the prior written consent of Code42; or (vi) use the Code42 Products and Services to develop any software application or similar products and services.

c.    CHANGES TO OR DISCONTINUATION OF CODE42 PRODUCTS AND SERVICES. Code42 reserves the right to revise or discontinue any Code42 Products and Services at any time without notice to End-User. Changes to or discontinuation of the Code42 Products and Services may occur after End-User places an Order but before Code42 ships or fulfills the Order, or before any renewal of the Code42 Subscription Services.

  

  1. DATA SECURITY.

a.   DATA STORAGE. End-User must decide where its User Data is stored.  End-User understands and acknowledges that only the files End-User selects for back up will be stored. Related to the Public Cloud, except as otherwise noted in this EULA, User Data is encrypted while transmitted to and while at rest.  Code42 may change the destination of User Data in the Public Cloud; however, Code42 will use commercially reasonable efforts to notify End-User (via email or other electronic communication) approximately thirty (30) days before Code42 moves the User Data to data centers that affect the legal treatment of the User Data.  If End-User is entitled to this notice and does not wish to have User Data hosted in data centers located in such other location, End-User may terminate its Code42 Subscription Services with immediate effect upon written notice to Code42 (directed to legal@code42.com) within thirty (30) days of Code42’s notification.  The Public Cloud is designed to work with Devices that are in-use and frequently connected to the Internet. End-User is solely responsible for the loss of any User Data not stored in the Public Cloud. End-User may submit certain information to Code42 which may be required to provide Support. Such information will be encrypted by End-User before transmission and will not be decrypted by Code42 unless End-User submits a request to decrypt such information for the sole purpose of providing Support. Any such decrypted information shall be held by Code42 in accordance with its internal data handling requirements related to the protection of confidential information.  CODE42 SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY UNLAWFUL OR UNRIGHTFUL USER DATA UPLOADED TO THE PUBLIC CLOUD. 

b.  DATA STORAGE. Only the files you select to for backup will be stored in the Public Cloud. Code42 Products and Services are for backup purposes only and not intended to be used for primary or archived storage of your User Data.

       Public Cloud. Code42 decides where your User Data is stored and backed up as set forth above.  User Data stored to the Public Cloud is stored on Code42’s servers and User Data is encrypted prior to being transmitted to Code42. The Public Cloud is designed to work with Devices that are in-use and frequently connected to the Internet. When utilizing the Public Cloud, your Device must connect to the Public Cloud at least once every six (6) months.  Any User Data related to any Device that does not connect to the Public Cloud once every six (6) months may be deleted by Code42 in its sole discretion.

c. DATA SECURITY. Code42 Software provides three (3) levels of data security as described below:

 

Data Security Level

 

Security Mode:            Email Protected (Default)

Level of Data Protection: Low

Data Encryption:          Yes

Additional Details:       Data security key

Details:                

Code42 retains the data security key to your encrypted User Data. You have   access to the data security key by logging into your account and providing the   correct password for your account. Your account password is stored with Code42. UNDER THIS DATA SECURITY LEVEL, SECURITY IS ONLY AS STRONG AS YOUR LOGIN CREDENTIALS AND/OR ACCESS TO YOUR EMAIL ACCOUNT.

 

Security Mode:            Password Protected

Level of Data Protection: High

Data Encryption:          Yes

Additional Details:       Data security key & user provided data password

Details: Code42 retains a password protected data security key, however, End-User must enter a unique password to unlock your data security key. IF END-USER LOSES ITS PASSWORD, ENCRYPTED USER DATA WILL NOT BE RECOVERABLE WITHOUT A PASSWORD.

 

Security Mode:            Custom Key Protection

Level of Data Protection: Extremely High

Data Encryption:          Yes

Additional Details:       User provided custom data security key

Details:  Code42 does not retain End-User’s data security key. SHOULD END-USER LOSE ITS DATA SECURITY KEY, ENCRYPTED DATA WILL NOT BE RECOVERABLE.   CODE42 ADVISES END-USER TO STORE ITS DATA SECURITY KEY IN MULTIPLE SECURE OFFSITE LOCATIONS.

 

d. ACCOUNT DETAILS AND PASSWORD. End-User agrees to keep all account and password details private and to not share them with anyone else in order to prevent unauthorized access to End-User’s account, password, and/or User Data. Code42 is not liable for any loss or damage arising from any access to, sharing or use of End-User’s account, password or User Data. If End-User believes there has been any unauthorized access to End-User’s account, End-User must notify Code42 immediately at http://www.crashplan.com/helpdesk.

e. DELETED FILES. By default, all deleted files are maintained by Code42, at Code42’s discretion space permitting, for at least thirty (30) days. In account settings, End-User can customize the period of time Code42 would maintain a deleted file.

f. VERSIONING. By default, the Public Cloud will maintain up to 1,000 versions of End-User’s backup data over a four (4) year period. Code42 reserves the right to reduce both the number of versions and period of time in its sole discretion. End-User may customize versioning in End-User’s account settings. Code42 encourages End-User to configure its own versioning standard.

g.  STORAGE OF YOUR DATA.  Any User Data that is transmitted or stored using the Code42 Products and Services may be transferred to and stored in servers located in countries that may have less protective data protection laws than the country in which End User is located (including without limitation the United States). These servers are owned and maintained by a third party processor which Code42 has required, by contract, to safeguard your User Data. If you have any questions about how your User Data is being handled, please contact Code42 using the contact details in Section 23.

h.   SECURITY BREACH OR CYBER-ATTACK.  Code42 may, without liability, suspend or terminate any or all Code42 Subscription Services to some or all of the Code42 Users: (i) following a possible or actual security breach or cyber-attack on Code42; (ii) in order to protect Code42’s network in the Public Cloud; (iii) if required by a governmental entity or law enforcement agency; (iv) if a Code42 User is using a Device that is defective or illegal; (v) if a Device is causing technical or other problems to the Public Cloud; (vi) upon the termination or expiration of a Subscription Term; or (vii) as otherwise allowed under this EULA. 

i.  SURVEILLANCE. The Code42 Software may contact Code42 to verify the status of any Code42 Subscription Services and to confirm that End-User is using the Code42 Software in accordance with the terms and conditions of this EULA. Devices with installed Code42 Software may also be tracked by Code42 (such as via Internet Protocol address) to locate where that Device is located so that End-User and its Code42 Users can locate their Devices.

j.  PROTECTED INFORMATION.    You represent and warrant that You will not submit any Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any personally identifiable information subject to regulatory protection under U.S. law (“Protected Information”) to Code42, whether as part of the Code42 Products and Services or otherwise.  Notwithstanding anything to the contrary in this EULA, You recognize and agree that Code42 shall have no liability whatsoever under this EULA or otherwise for any Protected Information You provide in violation of this Section, and You agree to fully indemnify and hold harmless Code42 from any third party claims resulting from a violation or alleged violation of this Section.

 

  1. USER DATA.

CODE42 ACKNOWLEDGES THAT END-USER HAS ALL RIGHT, TITLE, AND INTEREST IN THE USER DATA (AS BETWEEN YOU AND CODE42), AND IN NO WAY DOES THIS EULA GIVE CODE42 ANY OWNERSHIP RIGHTS TO THE USER DATA.  END-USER SHOULD ONLY USE THE CODE42 PRODUCTS AND SERVICES WITH USER DATA TO WHICH IT HAS FULL RIGHT, TITLE OR LICENSE. End-User represents and warrants that its use of the Code42 Subscription Services and related backup to and storage of User Data in the Public Cloud complies with all Applicable Laws, including those relate to data privacy, data security, international communication and the exportation of technical, personal or sensitive data. Submission of unencrypted User Data to Code42 shall be at End-User’s sole discretion and at its own risk, and Code42 assumes no responsibility or liability for receipt of such User Data. End-User further acknowledges that Code42 may anonymize Usage Data to use for statistical purposes and share samples of such anonymized Usage Data with other third party security-related researchers, vendors and other customers. IN NO EVENT WILL CODE42 BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS END-USER MAY HAVE RELATED TO ITS USER DATA.  RELATED TO THE HANDLING OF ITS PROTECTED USER DATA, END-USER SHALL HAVE AND MAINTAIN APPROPRIATE POLICIES AND PROCEDURES FOR CYBERSECURITY AND TO ENSURE COMPLIANCE WITH ITS REGULATORY OR LEGAL OBLIGATIONS.

 

  1. MODIFICATIONS.

For continuity of performance, you agree that Code42 may, at any time in its sole discretion, access the Code42 Software on your Device, and/or cause the Code42 Software to contact Code42, in order to provide Modifications. All Modifications, will be related to the Code42 Products and Services and may contain Open Source Software (see Section 11 for more information on Open Source Software).

 

  1. UNINSTALLING CODE42 SOFTWARE.

You may uninstall the Code42 Software by using any uninstall utility that accompanies the installed Code42 Software or through the uninstall mechanism provided by your compatible operating system on your Device. UNINSTALLING THE CODE42 SOFTWARE WILL CEASE ALL FUNCTIONALITY OF THE CODE42 SOFTWARE. UNINSTALLING THE CODE42 SOFTWARE WILL RESULT IN YOU NOT BEING ABLE TO ACCESS ANY USER DATA THAT WAS STORED TO THE PUBLIC CLOUD USING THE CODE42 SOFTWARE. ADDITIONALLY, UNINSTALLING THE CODE42 SOFTWARE WILL RESULT IN THE INABILITY OF OTHERS BACKING UP TO THAT DEVICE TO RETRIEVE THEIR BACKED UP USER DATA FROM THAT DEVICE. Code42 does not warrant that any and all portions of the Code42 Software will be removed by any uninstall utility or the uninstall mechanism of your operating system. Code42 does not warrant that all of your Device's software content, including but not limited to the operating system, will regress to a state of operation, including but not limited to settings and options, that are identical to those that existed prior to the installation of the Code42 Software or your use of the Code42 Products and Services. You remain bound by the terms of this EULA, including but not limited to its disclaimer of warranties, limitation of liability, exclusive remedy, intellectual property, and ownership clauses even after you uninstall the Code42 Software and discontinue your use of the Code42 Products and Services.

 

  1. OPEN SOURCE CONTENT.

The Code42 Products and Services may contain or be provided with components subject to the terms and conditions of open source software licenses (“Open Source Software”). A representative list of Open Source Software can be found at http://www.code42.com/legal/open-source/.

 

  1. PROPRIETARY NOTICES.

End-User agrees to maintain and reproduce all copyright, trademarks and other proprietary notices on all copies, in any form, of the Code42 Software and the Code42 Products and Services in the same form and manner that such copyright and other proprietary notices are included on the Code42 Software and the Code42 Products and Services. Except as expressly authorized in this EULA, End-User shall not make any copies or duplicates of any Code42 Software or the Code42 Products and Services without the prior written permission of Code42.

 

  1. TERMINATION.

This EULA shall be effective as of your acceptance of this EULA and/or your use of the Code42 Products and Services and shall continue in effect until terminated by either party or otherwise terminated as set forth in this EULA. Either party may, at its election and in its sole discretion, terminate this EULA and any subscription to the Code42 Products and Services at will, at any time. Code42 specifically reserves the right to terminate this EULA and your use of Code42 products immediately, without notice from Code42, if you fail to comply with any provision of this EULA, your use any Code42 Product and Services in a way not intended by Code42, or you abuse your use of Code42 Products and Services. Code42 is further entitled to obtain injunctive relief if your use of the Code42 Products and Services is in violation of any restrictions set forth in this EULA, including without limitation any license restrictions. Upon termination, you shall destroy all copies of the Code42 Software and Documentation in your possession or control. ACCORDING TO THIS SECTION OR OTHER SECTIONS OF THIS EULA, CODE42 MAY TERMINATE YOUR ABILITY TO CONTINUE TO USE CODE42 PRODUCTS AND SERVICES. THE TERMINATION OF YOUR ABILITY TO CONTINUE TO USE CODE42 PRODUCTS AND SERVICES WILL CAUSE THOSE CODE42 PRODUCTS AND SERVICES TO CEASE FUNCTIONING AND RESULT IN YOU NOT BEING ABLE TO ACCESS ANY USER DATA THAT WAS STORED USING THE PUBLIC CLOUD.TERMINATING YOUR USE OF THE CODE42 PRODUCTS AND SERVICES WILL ALSO RESULT IN THE INABILITY OF OTHERS BACKING UP TO THAT DEVICE TO RETRIEVE THEIR BACKED UP USER DATA FROM THAT DEVICE. The termination of this EULA for any reason shall not affect: a) the obligations of the parties to account for and pay to one another any amounts for which they are obligated by virtue of transactions or events which occurred prior to the effective date of termination; or b) any other obligation or liability which either party has to the other under this EULA and which, by its nature, would reasonably be expected to survive termination.

 

YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW ANNUALLY AT THE PUBLISHED MONTHLY RATE, UNLESS YOU CANCEL BEFORE THE START OF THE NEXT SUBSCRIPTION RENEWAL DATE.  YOU MAY CANCEL YOUR SUBSCRIPTION BY EMAILING US AT SUPPORT@CODE42.COM.  IF YOU CANCEL, PREVIOUS CHARGES MAY BE REFUNDED, YOUR SUBSCRIPTION WILL BE TERMINATED, AND YOUR USER DATA WILL BE DELETED FROM THE PUBLIC CLOUD.

 

14. ALLOCATION OF RISK.

You acknowledge and agree that Code42 has set its prices and entered into this EULA and your subscription to the Code42 Products and Services in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

 

15. LIMITED WARRANTY.

Code42 warrants that, for a period of ninety (90) days from the date of the first purchase of your subscription to the Code42 Products and Services that such Code42 Products and Services, in the form delivered by Code42, will substantially conform to and perform substantially in accordance with Code42's published Documentation, to the extent such exists, with respect thereto when installed and operated in accordance with Code42 specifications, and Code42 will endeavor to correct any failure of the Code42 Products and Services to so conform or perform of which Code42 receives written notice from you within said ninety (90) day period. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CODE42 PRODUCTS AND SERVICES FURNISHED BY CODE42 AND ACCEPTED BY YOU ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY CODE42. CODE42 DOES NOT WARRANT THAT THE CODE42 PRODUCTS AND SERVICES OR ASSOCIATED DOCUMENTATION WILL MEET YOUR REQUIREMENTS, WILL BE COMPATIBLE WITH YOUR DEVICES, OR THAT THE OPERATION OF THE CODE42 PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF CODE42 PRODUCTS AND SERVICES IS WITH YOU.

 

16. LIMITATION OF REMEDIES.

YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING LIMITED WARRANTY WILL BE THAT (A) CODE42 WILL ENDEAVOR TO CORRECT WITHIN A REASONABLE TIME ANY REPORTED FAILURE OF CODE42 PRODUCTS AND SERVICES TO SUBSTANTIALLY CONFORM TO OR PERFORM SUBSTANTIALLY IN ACCORDANCE WITH CODE42'S DOCUMENTATION OR, TO THE EXTENT SUCH SPECIFICATIONS EXIST, DURING THE WARRANTY PERIOD SET FORTH IN SECTION 15 OF THIS EULA OR (B) IN THE EVENT THAT CODE42 SHALL FAIL OR BE UNABLE FOR ANY REASON TO CORRECT ANY SUCH FAILURE OR NON-CONFORMITY OF THE CODE42 PRODUCTS AND SERVICES YOU MAY TERMINATE THIS AGREEMENT AS TO THE AFFECTED CODE42 PRODUCTS.

 

17. LIMITATION OF CODE42 LIABILITY.

IN NO EVENT WILL CODE42 BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR USER DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS EULA OR ANY CODE42 PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED BY CODE42 UNDER THIS EULA OR THE USE THEREOF, EVEN IF CODE42 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND THE AGGREGATE LIABILITY OF CODE42 IN CONNECTION WITH ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY CODE42 PRODUCTS AND SERVICES FURNISHED OR TO BE FURNISHED BY CODE42 UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO CODE42 FOR YOUR SUBSCRIPTION OF CODE42 PRODUCTS AND SERVICES UNDER THIS EULA.

 

18. COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY.

Subject to the limitations of Section 17,  and only if User has purchased and is lawfully using the Code42 Software, Code42 will, at its expense, defend any suit or claim brought against you and will indemnify you against any settlement agreed to by Code42 or any award of damages and costs against you by a final court judgment based on a claim that your use of the Code42 Software infringes or violates any U.S. copyright, trademark or trade secret rights , or any patent rights of a third party issued as of the effective date of this EULA, provided that: a) you notify Code42 promptly in writing of any notice of any such claim; b) you cooperate with Code42 in all reasonable respects in connection with the investigation and defense of any such claim; c) Code42 shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise; and d) should the Code42 Products and Services become, or in Code42's opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, you will permit Code42, at Code42's option and expense, either to: (i) procure for you the right to continue using the affected Code42 Products and Services; (ii) replace or modify the same so that it becomes non-infringing; or (iii) terminate this EULA with respect to such Code42 Products and Services and refund to you a prorated amount of the subscription fees prepaid to Code42 from the date on which you notified Code42 in writing of any such claims. Notwithstanding anything herein to the contrary, however, Code42 shall have no obligation or liability under any provision of this Section if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon use of an Code42 Products and Services in a manner other than that for which it was furnished by Code42, upon any Code42 Products and Services which has been modified by or for you in such a way as to cause it to become infringing, or upon any trademark or service mark which is not used by Code42.

 

19. INDEMNITY BY YOU.

You will, to the fullest extent permitted by law, indemnify Code42 and its officers, directors, shareholders, employees and agents and their respective successors and assigns (collectively, the “Code42 Indemnified Parties”) against and hold the Code42 Indemnified Parties harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys' fees in connection with investigating, defending, or settling any claim relating to or arising out of any acts or omissions on the part of you which gives rise to claims against Code42 Indemnified Parties by third parties.

 

20. U.S. GOVERNMENTAL USER PURCHASES.

The Code42 Products and related Documentation are “Commercial Terms,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.

 

21. YOUR OBLIGATIONS.

You represent and warrant that (a) you are the owner or an authorized user of the Device on which the Code42 Products are installed and any User Data used in conjunction the Code42 Products and Services; (b) you shall use the Code42 Products and Services only for lawful purposes, and will comply at all times with all applicable federal, state, and local laws and regulations applicable to the use of the same; and (c) you shall use the Code42 Products and Services for your personal use only. You agree not to use any automated or manual process to interfere with, modify, or attempt to interfere with or modify the Code42 Products and Services except to uninstall the same as provided herein.

 

22. GENERAL PROVISIONS.

a. ENFORCEMENT/CHOICE OF LAW/ARBITRATION. Every provision of this EULA will be construed, to the extent possible, so as to be valid and enforceable. The laws of the State of Minnesota, excluding its conflicts of law rules, govern this EULA and your use of the Code42 Products and Services. Your use of the Code42 Products and Services may also be subject to other local, state, national, or international laws. If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision shall be deemed amended to approximate as closely as possible the effect of the original terms. All other provisions of this EULA shall continue in full force and effect. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA. All claims and disputes arising under or relating to this EULA are to be settled by binding arbitration in the state of Minnesota or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in information technology and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.  YOU AND CODE42 AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and Code42 agree otherwise, the arbitrator may not consolidate more than one person's claims with Your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.

b. ENTIRE AGREEMENT/NO WAIVER. This EULA together with the Pricing Policy and the Privacy Policy, both of which are incorporated herein, sets forth the entire agreement and understanding between Code42 and you regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. You acknowledge that it has not been induced to enter into this EULA by any representations or statements, oral or written, not expressly contained in this EULA. The failure by Code42 at any time to enforce any of the provisions of this EULA or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this EULA. The waiver of any default by Code42 will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.

c. CORRECTION OF ERRORS AND INACCURACIES. This EULA may contain typographical errors or other errors or inaccuracies and may not be correct or current. Code42 reserves the right to correct any errors, inaccuracies or omissions and to change or update this EULA at any time without prior notice. Code42 does not, however, guarantee that any errors, inaccuracies or omissions will be corrected.

d. HEADINGS. The section headings appearing in this EULA are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. This EULA shall not be construed as creating or constituting any partnership, joint venture or agency relationship between the parties.

e. ASSIGNMENT AND RESALE. Your rights under this EULA are not assignable or transferable. You agree not to resell the Code42 Products and Services or any portion thereof. This EULA will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No third-party beneficiaries are intended or shall be construed as created by virtue of this EULA.

f. EXPORT COMPLIANCE. You may not use or otherwise export or re-export the Code42 Products and Services except as authorized by United States law. In particular, but without limitation, the Code42 Products and Services may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Code42 Products, You represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. 

 

23. QUESTIONS OR ADDITIONAL INFORMATION. If you have any questions regarding this EULA or wish to obtain additional information, please send a letter via U.S. Mail to Code 42 at 1 Main Street S.E. #400, Minneapolis, Minnesota 55414.

 

Last Modified: February 29, 2016.

Copyright 2006-2016, Code42 Software, Inc. All Rights Reserved